Divorce moves fully online

HM Courts and Tribunals Service (‘HMCTS’), which is responsible for the administration of the courts in England and Wales, has announced that as from today, 13^th September, lawyers acting for clients in divorce proceedings must use the online divorce service, rather than apply for the divorce on paper.

The only exceptions are applications for civil partnership dissolution, judicial separation and nullity, which should be filed in paper at the Bury St. Edmunds Regional Divorce Centre.

There will be a transitional period from the 14^th of September to the 4^th of October, when HMCTS will continue to process paper applications – this is to give legal representatives additional time to register for access to the online service, and check the guidance on submitting applications online.

The move means that all divorce applications must now be made online, irrespective of whether they are issued by a lawyer or a litigant acting in person.

The transition to an all-online system has been in the pipeline for some time, but may have been accelerated by the pandemic, which has obviously encouraged the use of virtual, rather than physical, systems.

Advantages of online

HMCTS is clearly enthusiastic about its online divorce system. It reports that since it was launched in 2018 it has successfully processed over 150,000 online divorce applications.

HMCTS say that those using the system make fewer errors – they now return less than 1% of online applications, compared to around 20% of paper applications, for legal representatives to amend or provide more information.

HMCTS also point out that an online system enables lawyers to submit applications at any time of the day, and to monitor the progress of the application easily from any device and location.

And online divorce can make it easier for litigants to deal with the divorce themselves, leaving their lawyers to deal with more important issues, such as arrangements for children and finances.

Of course, a primary reason for HMCTS’s enthusiasm for the online divorce system is its relative cheapness, compared to a paper-based system. Unfortunately, this is not reflected in the court fee for divorce, which is just the same for online divorce as for the old paper system. As the fee is more than the actual cost of an undefended divorce to HMCTS, the result of going online is therefore that HMCTS will make an even greater profit – no wonder they are enthusiastic!

Issues

It is not all good news, however. Apart from the obvious issue of technical problems that can affect any online service, the system is not perfect.

For one thing, there are now two systems: one designed for litigants without lawyers, and the other designed for use by lawyers. Obviously, a litigant may decide to instruct a lawyer part-way through the divorce, and at present there is no way for a case to be transferred from one system to the other.

There is also the problem that the divorce is dealt with quite separately from any related proceedings, such as child arrangements proceedings or, in particular, financial remedy proceedings. Whilst this is not anything new (divorces have been dealt with separately since they were passed from local county courts to regional divorce centres in 2015), it can create difficulties when one set of related proceedings are dealt with virtually online and another is dealt with on paper at a bricks-and-mortar courthouse.

Lastly, it is in some ways a strange moment to require all divorces to use the system. Next April the new no-fault divorce system will come into force. The procedure under the new system is (almost) completely different from the present divorce system, meaning that the online divorce system will have to undergo a complete redesign between now and April.